The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1887-01-21
MUST THE SENATE CONFIRM

The question has been raised as to
whether the Governor can fill vacau-
cy in Judicial Office without the ap.
proval OF the Senate. The twtnty-ifth
section of Article V of the constitution
of 1874 is as follows: "Any vacancy
happening by death, resignation or
otherwise, IN any court of record, shall
be filled by appointment,by the Cover.
nor, to continue till the first Monday
of January next succeeding the first
general election which shall occur three
or more months after the happening OF
such vacancy Under this section it
has been the practice to fill such vacan-
cies without sending to the Senate for
approval. The language is clear and
explicit, and states by whom the ap.
pointment shall be made, and how long
the appointee shall hold office. The
Senate has nothing to do with it, aud
cannot limit the time for which the ap.
pointment is made, by its refusal at
any time TO approve it.
But the difficulty arises from another
clause in the constitution. Article ",
section s, reads as follows: "He (the
governoD shall nominate, and by and
with the advice and consent of two
thirds of all the members of the Senate
appoint such other of
fees of the commonwealth as he is or
may be authorized, by the constitution
or law, to appoint he shall have power
to bill all vacancies that may happen in
officers to which he may appoint during
the recess OF the senate, oy granting
commissions which shall expire at the
end CT their next session; he shall have
power to fill any vacancy that may
happen during the recess of the senate
in a judicial office or
in any other elective Office which he is
or may be authorized to fill if the
vacancy shall happen during the session
OF the senate, the governor shall nomi-
nate TO the senate, before their final ad-
Journment proper person to fill said
vacancy. Here is a distinct conflict
between the two sections of the consti-
tuition. One provides for the filling of
a vacancy by the governor, without
the advice and consent of the senate,
for term that shall expire on GER
tain day, to'wit, the first Monday of
January The other provides that the
same appointment must be approved
by the senate, and that the commission
issued during the recess of the senate
shall expire at the end of their next
session. The two sections are SO in
consistent that they cannot be recon.
ciled. Which one, then is in force
There are two rules on the consiruc-
ton of constitutions thst are apple able
to this case. One is that when two
sections are conflicting, one of which
is new, and the other has already been
in force in previous instrument, the
old one shall stand. Section 25 of
Article V of the constitution of 1874
IL copied from Section 2 of Article V
of the constitution of 1888, and hence
comes under this rule. while Section S
of Article " is new.
Another rule is, that the section that
appears latest in written instrument
shall have precedence over what comes
before, when there is a oonhict, and
this iule fixes section 25 as the one in
force. This is the opinion of Cover
nor Pattison, Attorney General Cassidy
Hon. c. r. Buokalew, aud many other
eminent lawyers. Under this vieS of
ihe case, whioh is undoubtedly correct
the appointment of O. b McHenry as
associale-judge was properly made
without sending bis name to the Senate.